September 27, 2010
STATE OF NEW JERSEY IN THE INTEREST OF J.B., A MINOR.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Sussex County, Docket Nos. FJ-19-337-08, FJ-19-439-08, FJ-19-496-08, FJ-19-622-08, and FJ-19-502-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 15, 2010
Before Judges Cuff, Fisher and Fasciale.
J.B., a juvenile, was adjudicated delinquent for having engaged in conduct which, if engaged in by an adult, would have constituted burglary, robbery, and trafficking in stolen property. In this appeal, the juvenile argues the trial judge erred in admitting the out-of-court statements of two individuals involved in the offenses and in admitting Google Earth maps to prove the juvenile's whereabouts at the time of the burglary. The juvenile also argues the imposition of four consecutive sixty-day terms in a juvenile detention facility was excessive.*fn1 Finding no error or abuse of discretion, we affirm.
The evidence adduced at trial revealed that, on October 24, 2007, the juvenile skipped school and spent the day with two friends, Clinton Mohn and Anthony Williams, as well as his girlfriend, A.S.*fn2 The group drove around in Mohn's car for most of the day before the juvenile was returned to his home at around 11:00 p.m. After a brief verbal argument with his mother, the juvenile went to his room upstairs and logged onto his computer, spending a few minutes accessing social networking sites.
According to Mohn and Williams, who both testified at trial, they met with the juvenile after he slipped out of his house at around 11:45 p.m. that night. After driving around town for about an hour, Mohn suggested burglarizing the home of a friend, Alex Witzl, who was away at college. Williams apparently liked the idea; the juvenile was also "up for it." According to Mohn and Williams, the three arrived at the Witzl residence at approximately 12:30 a.m., broke into the residence, and stole various items, including a jar of coins, a samurai sword collection, and a laptop. Mohn and Williams testified the juvenile remained in their company for several hours thereafter, as they drove around town looking for places to hide the stolen property. During this time, they visited the home of a friend, Omar Abhoulson, who testified the juvenile was present during this visit.
According to Mohn and Williams, the juvenile was returned home at around 3:00 a.m. A few hours later, the juvenile called Mohn seeking a ride to school. Mohn arrived at the juvenile's home at around 7:00 a.m., and drove him to school. However, after smoking a cigarette in the parking lot, the juvenile decided to skip school, and he, Mohn and Williams spent most of the day driving around town trying to sell the stolen swords.*fn3
Defense counsel attempted to discredit Mohn and Williams, suggesting during cross-examination several inconsistencies between their out-of-court statements and their testimony. He further insinuated Mohn and Williams were lying about the juvenile's involvement in the Witzl burglary to curry a better plea deal.
In his testimony, the juvenile acknowledged he was with Mohn and Williams on the day of the burglary, but maintained he returned home at 11:00 p.m., and did not see them again until the next day at school; he adamantly denied participating in the Witzl burglary or the later attempts to sell the stolen goods.
To support his alibi, the juvenile called his mother to testify. She corroborated some of her son's story, claiming she remembered he came home at 11:00 p.m. on the night of the burglary and, once he was home, "[h]e came upstairs" and apologized, and then "proceeded to go on the computer and was on the computer until 12:30 in the morning." The juvenile's mother also testified she was absolutely certain the juvenile was home for the entire night because she periodically checked on him throughout the evening.
To rebut this alibi evidence, the State produced phone records and a Verizon representative's testimony, which demonstrated calls were made from the juvenile's cellphone while the phone was in the vicinity of the burglary, not in the vicinity of the juvenile's home, where he claimed to be. In response, the juvenile testified that Mohn borrowed his phone on the night of the burglary -- he claimed he placed it on his bedroom windowsill -- and did not return it until the next morning.
After weighing the evidence and making credibility findings, the trial judge found the juvenile engaged in the charged conduct and imposed consecutive sixty-day terms in a juvenile correction facility.
The juvenile appealed, raising the following arguments for our consideration:
I. THE TRIAL COURT ABUSED ITS DISCRETION BY ADMITTING THE HEARSAY STATEMENTS OF J.B.'S CO-DEFENDANTS INTO EVIDENCE IN THEIR ENTIRETY, AS PRIOR CONSISTENT STATEMENTS UNDER N.J.R.E. 607 (Partially Raised Below).
A. The Prior Inconsistent Statements Made By J.B.'s Co-Defendants Presented Legitimate Avenues For Cross-Examination By Defense Counsel; However, Their Prior Consistent Statements Were Inadmissible Hearsay, Unaccompanied By Any Sufficient Charges Of Recent Fabrication Or Improper Influence Or Motive.
B. The Prior Consistent Statements
Of J.B.'s Co-Defendants Were Inadmissible Hearsay, As They Were Offered Simply To Prove The Truth Of The Matter Asserted And To Bolster The Credibility Of The State's Two Key Witnesses.
II. THE TRIAL COURT ABUSED ITS DISCRETION BY ADMITTING GOOGLE EARTH PHOTOGRAPHS INTO EVIDENCE WITHOUT PROPER AUTHENTICATION.
III. THE FOUR CONSECUTIVE SIXTY-DAY TERMS OF DETENTION IMPOSED WERE MANIFESTLY EXCESSIVE AND AN ABUSE OF THE TRIAL COURT'S DISCRETION.
We find no merit in these arguments and affirm.
In considering the admissibility of Mohn and Williams's out-of-court statements, it is important to understand how they were used during trial.
During cross-examination, the juvenile's attorney attempted to discredit Mohn and Williams by revealing the differences between their out-of-court statements and their trial testimony. In one instance, counsel asked Mohn why he told police the juvenile was the first person to enter the Witzl residence, only to later testify that the juvenile followed Mohn into the house. In addition, while cross-examining Williams, the juvenile's attorney asked why he told police the juvenile never went home on the night of the burglary, only to testify at trial that Mohn dropped the juvenile off at home and picked him up again at around 11:45 p.m. The juvenile's attorney pointed out other differences between the out-of-court statements and Mohn and Williams's testimony.
As a result, during redirect examination, the prosecutor sought to introduce Mohn and Williams's out-of-court statements pursuant to N.J.R.E. 803(a)(2), to demonstrate that those prior statements were consistent with their trial testimony as a means of eviscerating the attack on their credibility. The juvenile's attorney objected, claiming the statements were inadmissible because they were "long and voluminous," and contained "lots of improper questions," and, also, because both Mohn and Williams appeared to testify. The trial judge rejected these objections, concluding that, although the statements might have been voluminous, irrelevant portions could be redacted and, even though both witnesses testified, their out-of-court statements were admissible as prior consistent statements.
Just before summations were to commence, the juvenile's attorney renewed his objection, arguing his use of the out-of-court statements during cross-examination of Mohn and Williams did not render the statements admissible pursuant to N.J.R.E. 607:
[T]he relevan[t] rule is 607 [and pursuant to that rule,] the only way that [prior consistent] statements come in is if there is the suggestion of recent fabrication. And merely the opposing lawyer pointing out inconsistencies, contradictions in a witness'[s] testimony from the witness stand which is always done and that's typical cross examination, that is not what that [the] rule has in mind for a recent fabrication.
In rejecting this argument, the judge explained there was "an implied charge" by the juvenile's attorney: that the witnesses had created this fabrication as late as May of 2008. That the[re] were stories that had changed from the beginning and . . . therefore the [p]rosecution had a right to show that with regard to the critical fact of [the juvenile] being present during the . . . burglary, that [the juvenile] was in fact there.
In this appeal, the juvenile claims the statements were inadmissible because they "were offered by the State simply to show that [the juvenile] committed the offenses charged by bolstering the credibility" of the declarants. In other words, the juvenile argues that "the State introduced the statements simply to prove the substantive truth of the matter," i.e., that the juvenile, while in the company of Mohn and Williams, participated in the burglary.*fn4 We disagree.
As a general matter, a party may not introduce evidence for the sole purpose of bolstering his own witness's credibility. See 1 McCormick on Evidence § 47 at 219 (6th ed. 2006). However, once a witness's credibility has been attacked, a party may attempt to repair any perceived damage. Ibid. N.J.R.E. 607 permits the use of a prior consistent statement to repair the credibility of a witness, but only when an adverse party has suggested the witness's testimony is either the product of "recent fabrication" or the witness had an "improper influence or motive" to testify falsely. See also State v. Johnson, 235 N.J. Super. 547, 555 (App. Div.), certif. denied, 118 N.J. 214 (1989). N.J.R.E. 803(a)(2) also permits use of a prior consistent statement in language essentially identical to N.J.R.E. 607. Any nuances or theoretical differences that may exist between the two rules, see, e.g., Biunno, Current N.J. Rules of Evidence, comment 2 on N.J.R.E. 803(a)(2) (2010), have no relevance here. In essence, under either rule, the proponent of the statement must demonstrate that the witness has been accused of either a "recent fabrication" or "improper influence or motive" as a basis for the statement's admission.
In reviewing a trial judge's decisions regarding the admission of evidence, we do not intervene unless the ruling constituted an abuse of discretion. State v. Muhammad, 359 N.J. Super. 361, 388 (App. Div.), certif. denied, 178 N.J. 36 (2003). We find no abuse of discretion here; indeed, we conclude the trial judge properly admitted the out-of-court statements.
Specifically, counsel posed an array of questions about a number of key differences between the out-of-court statements and the versions recounted by Mohn and Williams during their direct examination. Counsel's obvious objective was to suggest that Mohn and Williams fabricated a different story at some point between the time they spoke to police and the time of trial. Furthermore, the juvenile's attorney also sought to elicit the witness's purported motive to fabricate by demonstrating during cross-examination that Mohn and Williams hoped to receive a better plea deal from the prosecutor in exchange for their testimony; for example, the following transpired during the cross-examination of Mohn*fn5
Q: And as part of your plea, you indicated on the form that with the charges that were pending against you before you entered into the plea bargain, you were looking at a maximum time of a[n] approximation of 26 and a half years, is that right?
Q: $98,000 in fines?
A: Yes, sir.
Q: And as a result of the plea bargain, you were expecting to receive a flat four years?
A: Yes, sir.
Q: Right? And one of the things that you had to do to get the benefit of that plea bargain was to testify against [the juvenile], right?
A: Yes, sir.
And, in his cross-examination of both Mohn and Williams, the juvenile's attorney suggested they falsely inculpated the juvenile because they knew he would likely be punished less severely due to his age.
In essence, counsel not only attempted to detail the differences between the witnesses' out-of-court statements and their testimony, but also insinuated Mohn and Williams were not presenting an accurate recitation of the facts in their testimony. In those circumstances, it was quite reasonable --and hardly an abuse of discretion -- for the judge to conclude that the out-of-court statements could be admitted under either N.J.R.E. 607 or N.J.R.E. 803(a)(2).
To discredit the juvenile's alibi that he was at home during the time of the burglary, the prosecutor introduced phone records, which showed several calls made from the juvenile's cellphone at the time of the burglary. Unrebutted testimony from a Verizon representative demonstrated that a cellphone call is first transmitted to the cell tower closest to the caller.*fn6
Here, the telephone records established that calls from the juvenile's cellphone at the time of the burglary were transmitted to the cell tower located at 3000 Continental Drive in Mount Olive (the "Continental tower"). To demonstrate the calls were more likely placed nearer the Witzl residence than the juvenile's residence -- where the juvenile said he was at the time of the burglary -- the prosecutor sought to prove that the Continental tower was the closest to the Witzl residence and that if the juvenile were at home during the burglary, as he asserted, any calls made from his cellphone would have been transmitted to the cell tower located at 16 Bridget Way in Byram (the "Bridget tower").
In seeking to prove the juvenile's house was closer to the Bridget tower than the Continental tower, the prosecutor produced a satellite photograph generated by the Google Earth software program*fn7 ; the photograph was represented to be an aerial snapshot of Sussex County with computer-generated markings at the estimated locations of the two residences and the two cell towers. The juvenile's attorney objected, asserting there was no "foundation in terms of how accurate [Google Earth] is." The judge sustained the objection and barred use of the Google Earth photograph as substantive proof of the distances between the two locations and cell towers, explaining that "although Google Earth is a tool that a lot of people are using . . . I don't know that [its] [reliability has] been established at this point."
The prosecutor subsequently called Detective Duffy to testify regarding what the judge referred to as "the predicate information" required to assess the value of his Google Earth photographs. The detective testified how he personally visited each of the residences and cell towers in question, and measured the distances between those locations on the odometer of his police cruiser. The prosecutor offered this testimony as evidence of the reliability of Google Earth and to demonstrate that the Continental tower was closer to the Witzl residence and the Bridget tower was closer to the juvenile's residence.
In order to illuminate the significance and accuracy of the detective's geographic testimony, the prosecutor showed the detective an atlas map of Sussex County that contained markings at the estimated locations of the two cell towers.*fn8 Then, the prosecutor provided the detective with two Google Earth photographs: the first was an overhead image of an area containing the Witzl residence and the Continental tower; the second was an overhead image of Byram and Sparta that contained computer-generated markings at the estimated locations of the two residences and the two cell towers. Defense counsel again objected, but this time the judge overruled his objection:
The [c]court finds that other than very recently what would have happened is . . . that the State would have brought in an atlas map and ask[ed] somebody familiar with the area to point on the map where different locations are and how you would get there. And this is just an updated manner of getting the same information. If the [d]efense wants to show that the information is incorrect, they can certainly do it by either cross examination or they can do exactly what I just suggested and bring in an atlas map and show where the exhibit that the State is offering is incorrect.
In appealing, the juvenile claims the trial judge erred in allowing the State to use the two Google Earth photographs because they were not properly authenticated pursuant to N.J.R.E. 901. Specifically, the juvenile complains "there was no testimony that the Google Earth images were accurate reproductions of what they purported to represent at the time of the incident in question, or that the purported representations had not changed between the time of the incident and the taking of the images."
Trial courts generally enjoy broad discretion in admitting "replicas, illustrations and demonstrations and in controlling the manner of presentation and whether or not particular items are merely exhibited in court or actually received in evidence." Rodd v. Raritan Radiologic Assocs., P.A., 373 N.J. Super. 154, 165 (App. Div. 2004). Whether a demonstrative aid will be admitted ordinarily turns on whether it sufficiently replicates whatever it is designed to illustrate. Persley v. N.J. Transit Bus Operations, 357 N.J. Super. 1, 14 (App. Div.), certif. denied, 177 N.J. 490 (2003); Balian v. Gen. Motors, 121 N.J. Super. 118, 126 (App. Div. 1972), certif. denied, 62 N.J. 195 (1973). Of course, demonstrative evidence must be properly authenticated before it can be admitted, Rodd, supra, 373 N.J. Super. at 165, which, such as in the case of a photograph, "requires testimony establishing that: (1) the photograph is an accurate reproduction of what it purports to represent; and (2) the reproduction is of the scene at the time of the incident in question, or in the alternative the scene has not changed between the time of the incident in question and the time of the taking of the photographs." Biunno, supra, comment 4 on N.J.R.E. 901; see also Saldana v. Michael Weinig, Inc., 337 N.J. Super. 35, 46-47 (App. Div. 2001).
In applying these standards, we conclude the trial judge did not abuse his discretion in allowing the prosecutor to use the two Google Earth photographs in order to illuminate Detective Duffy's testimony about the distances between the cell towers and locations in question. However, even if we were to agree with the juvenile's hypertechnical argument, we cannot conclude this purported error was capable of producing an unjust result, particularly when the photographs were not offered as substantive proof of the distances between the residences and the cell towers but merely as illustrative aids to the testimony. See State v. Scherzer, 301 N.J. Super. 363, 434-35 (App. Div.) (upholding the State's demonstrative use of a replica baseball bat because the record contained testimony that a baseball bat was used against the victim), certif. denied, 151 N.J. 466 (1997). Because the images were not offered as substantive evidence, they were unnecessary to prove the underlying facts -- that the Witzl residence was nearer the Continental tower and the juvenile's house was nearer the Bridget tower -- and their exclusion would not have altered the trial in any material or meaningful way. Indeed, the trial judge expressed his own skepticism about the reliability of gauging the distance between objects by way of a Google Earth map as opposed to a map taken from an atlas, upon which the judge placed his reliance.
Moreover, the interesting question regarding the authentication of Google Earth maps was further rendered inconsequential by the concession of the juvenile's attorney during his summation that the State had proven beyond a reasonable doubt that the juvenile's cellphone was at the Witzl residence during the burglary. As a result, the only disputed fact to be resolved regarding the cellphone was not its location at the time of the burglary but the location of the juvenile at that time. This required that the judge determine whether the juvenile's claim that he lent his cellphone to Mohn that night was credible. The judge found the juvenile was not credible for numerous good reasons; that finding is entitled to our deference.*fn9
We lastly find insufficient merit in the arguments contained in the juvenile's Point III to warrant discussion in a written opinion. R. 2:11-3(e)(2).